NASCAR Abuses DMCA To Try To Delete Fan Videos Of Daytona Crash

from the that's-now-how-copyright-works dept

Joseph M. Durnal was the first of a whole bunch of you to send in a version of this story showing how NASCAR abused copyright to take down some videos. You may have heard that there was a big NASCAR crash at Daytona that sent debris flying into the stands. Well, a video from those same stands, which shows a wheel lying in the seats next to someone injured, was deleted from YouTube via NASCAR claiming copyright on it and issuing a takedown. Obviously, that's a bogus claim, because the copyright would belong to the guy who filmed it.

As the press started calling, NASCAR gave what might seem like a perfectly reasonable response:

The fan video of the wreck on the final lap of today’s NASCAR Nationwide Series race was blocked on YouTube out of respect for those injured in today’s accident. Information on the status of those fans was unclear and the decision was made to err on the side of caution with this very serious incident.—Steve Phelps, NASCAR Senior Vice President and Chief Marketing Officer

Sounds great, except it's totally bogus. NASCAR may well be concerned about those injured by the crash, but that does not give them the right to automatically remove someone else's video, nor does it allow them to abuse the DMCA takedown process for that purpose. The DMCA only applies to copyright.

Of course, once again, we're seeing how when our laws make it easy to censor via copyright claims, many people seek to do exactly that. Thankfully, all of the attention on the takedown has resulted in YouTube doing what appears to have been an expedited review, and have put the video back:

Reader Comments

Actually I do believe their intentions are true and honest and censorship was not in their minds. Much like a few "for the children" initiatives are perfectly honest. However this makes it quite clear that once the tools for censorship are in place they will be used. And that there will be wrongful "censoring" (or collateral damage).

Re:

I don't believe even in an instant that there's a modicum of attempted protection of the children. I do believe that the modicum of interest was wanting to protect supposed damage to the Nascar name. Also lawsuits.

Corporations don't care about people. If they do, don't you think they would invest more in better crowd safety to prevent situations like this? Instead we're stuck focusing on the censorship, mostly because it's blatant.

Re: Re:

Give me a break!

While I don't think using DMCA like they did was in any way justified, to say they don't try to make the place as safe as possible is not true. They provide as much safety as possible while attempting to maintain an enjoyable experience for the fans.

Some people like to sit down front and get rubber flung in their face. Others like the top seats for a better view of the entire track. Until this crash, they believed they had a system that would prevent this very thing. They have modified the cars so they almost never flip like they used to just a scant 10 years ago, They added a SAFER barrier to protect the drivers, Hell, the car that was shorn in half, and the driver walked away!

If you want to stay safe from any possibility of danger, stop playing sports, stop driving or riding in a car, never fly, stay away from bars and other places where a crowd gathers, basically go hide in a cucoon, under a rock, and hope no other soul finds you. All of these are more dangerous than going to a race.

There clearly needs to be some teeth for bogus takedowns. There is no way that they can claim that they "in good faith" thought they owned the copyright here. In fact, they admit that they didn't issue a takedown for that. If this isn't breaking the law, I don't know what is.

Re: Re:

> If their are teeth put into the law for bogus takedowns,
> what will the poor politicians do when they want to remove
> anything that is damaging to their image from the Net.

They'll do it the old fashioned way. Which is usually far more entertaining.

Quietly threaten to sue. Claim the threatening letter is copyrighted and cannot be published. Claim national security is at stake. Throw the word terrorist around. Make claims of representing law enforcement. Make bold statements that are contrary to the way the law and the legal system work. Show you proof, in writing, that said politician has hired investigators to hack into your computers and have obtained personal information.

See? Isn't that a lot better than a bogus DMCA takedown? Therefore, why do we need the DMCA?

Re: Re:

Fine Print

I thought the takedown request was initially being justified by the assignment of copyright on the ticket. I haven't seen the text, but by walking in the gate you assign all copyright in any video you take to NASCAR. Sort of like a EULA for taking your rights away in the physical world.

Re: Re: Fine Print

Re: Re: Fine Print

My husband has an old ticket from the Daytona 500 (probably about 8 years ago) and it does indeed have a disclaimer on the back of the ticket, but that disclaimer (the way I read it) doesn't mean you turn over your copyright to photos/videos you take, it simply means they can use your likeness (ie: a photo of your, or a video of your) in any way they choose. A quote from the back of a Daytona ticket:

[Holder irrevocably grants to Daytona International Speedway and its assigns, licensees, affiliates and successors the right to use Holder's image, likeness, voice, actions and/or statements in all forms and media including advertising, trade, or any commercial purpose throughout the world and in perpetuity. Holder hereby waives any and all claims that holder may have for libel, defamation, invasion of privacy or right of publicity, infringement of copyright or violation of any other right arising out of or relating to any utilization of Holder's image as described herein.]

Re: Fine Print

I thought the takedown request was initially being justified by the assignment of copyright on the ticket. I haven't seen the text, but by walking in the gate you assign all copyright in any video you take to NASCAR. Sort of like a EULA for taking your rights away in the physical world.

That's not a legal transfer of the copyright.

From the copyright office itself:

"Any or all of the copyright owner's exclusive rights or any
subdivision of those rights may be transferred, but the trans­fer of exclusive rights is not valid unless that transfer is in writing and signed by the owner of the rights conveyed or such owner's duly authorized agent"

Unless the ticket involve them explicitly signing something saying that they were assigning the copyrights to NASCAR, which seems unlikely...

Re: Re: Fine Print

i have no doubt you are correct about this, *BUT* the one counter-example i saw someone come up with rings true:
try to take your phone/whatever and video an NFL game, and see how far you get with that...

*and* i am thinking the NFL won't give a shit whether it was for your own personal use, or if it was 'broadcast' in some manner (which i'm guessing is almost ANY manner of recording), they will *still* come down on you like a ton of bricks...

(which -for the record- yes, it hurts a lot more to get hit with a ton of bricks versus a ton of feathers...)

i have always wondered whether you could take the 'official' NFL (or whoever in Big Sports) broadcast, and overlay a snarky, mocking narration, and 're-broadcast' that as a parody ? ? ?

*somehow*, i doubt that -EVEN IF 100% 'legal'- anyone would be able to pull that off...

the point being, that EVEN 'LEGAL' uses of Big Media will NOT be suffered, as we are all learning to our peril...

Awesome!

Terms of entry

Don't the operators of these types of events either prohibit customers from taking and/or sharing photos and/or videos or require the customer to sign over their copyright of all photos & videos the customer takes at the event exactly for these cases?

Re: Re: Terms of entry

You do realise that the ONLY thing a company can do to enforce there "no photograph etc" rule is to remove that customer from the premises, since they have no legal right to remove the photograph from any device (that's assault for starters). If the customer refuses to leave then trespass laws might come into affect, but otherwise the 'rule' as a contract term is absolutely voidable under law.

As for the assignment of copyright... not even close. You really dont know anything to do with contract law, copyright, nor interference torts do you? And lets not forget criminal action that could be placed upon any agents of the organisation under the standard US color of law statutes.

Re: Re: Terms of entry

"Effective tools"? Well, we Brits call an idiotic person a tool and I think we all know who is the biggest tool around these parts. Obviously our old "friend" (I use the word VERY loosely) OOTB in disguise again. Wrap up and keep warm. Sounds like you need a bit of TLC for your sad life.

Re: Re: Terms of entry

"Then where are all the DMCA takedowns for all the photos and videos taken at every single NASCAR-sanctioned event and posted online?"

This needs to repeated continuously until those who support Nascar in this takedown (and Nascar themselves) can answer this question in full. Until then, what they did is defacto censorship and image control. Selective enforcement won't wash with people.

Re: Terms of entry

I don't think it's specifically for these cases. Usually they just don't want broadcasting from sources that are not the official cameras. But it makes little sense here since the footage is posted after all the broadcast. And even if the race itself is covered by copyrights and they had all these terms of service or whatever, this would probably fall under fair use protections.

In any case, it's a good thing Google/Youtube put it back online. At least when there's enough outrage they'll actually check what they take down.

Re: Terms of entry

Don't the operators of these types of events either prohibit customers from taking and/or sharing photos and/or videos or require the customer to sign over their copyright of all photos & videos the customer takes at the event exactly for these cases?

As noted above, you cannot assign copyrights by such a manner. You need the current copyright holder to physically sign the assignment. So any claim otherwise would not be a valid transfer.

Re: Re: Re: Terms of entry

The "In Consideration" is out the window. No matter what clause or TOS or paper signing you do in purchasing a ticket....If you create the footage....you own it. The creation clauses in copyright can be exploited (just ask the RIAA and the MPAA) but they are also fairly strong and they override any "do not make videos while watching any sporting event live" clauses in the process.

Re: Terms of entry

Re: Re: Terms of entry

And since we fans of NASCAR typically do not sign tickets..they are scanned to confirm entry...no matter what writing appears on that ticket, we are not legally obligated to follow said writings on the ticket....

At last you've gotten to the concept of what belongs to others:

"that does not give them the right to automatically remove someone else's video" -- OKAY, PIRATES, so now tell me how you're privileged to dispose of someone else's $100 movie by uploading it to Megaupload, Rapidshare, TPB, and other "file sharing" sites?

But of course Mega.co.nz Mike only uses uses notions as suit his immediate case, doesn't bother with consistency.

Take a loopy tour of Techdirt.com! You always end up at same place!http://techdirt.com/
Where Mike sez: uploader + file host + links site + downloader = perfectly "legal" symbiotic piracy.

Re: At last you've gotten to the concept of what belongs to others:

By the way, I DO NOT SUPPORT notions of "terms of entry" or whatever printed on a ticket: it's a public accomodation like any other business, you don't lose or give away rights merely by entering, there's NO contract beyond the terms of common law as in all other venues and times.

NASCAR is a corporation with the monopoly on car racing, trying to exercise power here, that's all, and we need to quit letting corporations dictate "terms". But of course Mike doesn't go into the corporate aspects -- let alone is he anti-corporation -- just restricts to the narrow "copyright" area.

Re: Re: At last you've gotten to the concept of what belongs to others:

Re: Re: At last you've gotten to the concept of what belongs to others:

"By the way, I DO NOT SUPPORT notions of "terms of entry" or whatever printed on a ticket: it's a public accomodation like any other business, you don't lose or give away rights merely by entering, there's NO contract beyond the terms of common law as in all other venues and times."

The Ohio State University Marching Band had a video game review during a half-time show on September 8, 2012...filmed by hundreds of fans who posted it on youtube...not one of them were asked to take down the videos.......They bought standard tickets as those would in the NASCAR Stands would....and yes, the Ohio State University does in fact have press tickets....there are hundreds of videos on YouTube of the event.

"NASCAR is a corporation with the monopoly on car racing, trying to exercise power here, that's all, and we need to quit letting corporations dictate "terms"."

NASCAR is not the only auto racing industry in the US. There are several other specialized Auto Racing industries such an NGTA (National Grand Touring Association)and Formula 1 Kart Racing to name a couple.

Now as far as corporate aspects...there was never any to deal with in the first place. The issue is purely copyright and DMCA abuse. There are many other journalists who had an issue with the same event. Mike Mansick is in fact writing about how they had no right to even issue a take-down notice. The focus is not narrowed it is rooted in the subject of copyright...I am no journalist myself but I can see that it is a copyright issue from the morning news paper I got......

The creator of the content was not in fact a NASCAR official but a fan, and had their footage taken down upon request via Google's completely flawed automatic take-down policy upon DMCA take-down requests.

Re: Re: At last you've gotten to the concept of what belongs to others:

There are commenters here who have admitted they pirate, and detail the reasons why. There are many other people here he and his type attacks as pirates (including Mike) who have repeatedly stated they do no such thing. Some people here seem to forget the latter group exists, or assume they're lying despite no evidence the doubt their words.

ootb may break out of his moronic fantasies long enough to correctly recall the identity of the self-admitted infringers who post here. However, he will neither provide any evidence to back up his claims about others, nor admit that reality is far more complicated than the "I'm the hero, everyone else is a pirate" fabrication that he and his trolling brethren require for any of their arguments to make any sense.

Re: At last you've gotten to the concept of what belongs to others:

"OKAY, PIRATES, so now tell me how you're privileged to dispose of someone else's $100 movie by uploading it to Megaupload, Rapidshare, TPB, and other "file sharing" sites?"

Mike has routinely written that piracy is against the law and he does not condone it. However, knowing something is wrong and knowing it's going to happen anyway and writing how one can make the best of a bad situation is something completely different. So it's not hard to see how you can conflate the issues and try and spin it to "Mike finally accepts you don't have the right to others property".

Re: Re: At last you've gotten to the concept of what belongs to others:

Out of the blue doesn't care much for facts and reality. He's perfectly fine in that weird bubble of his. He's rejected our reality, and tries to substitutes his own. Except he's not Adam Savage, and Ootb only brings forth myths instead of busting them.

They may have acted in "good faith", as they claim, but that video wasn't theirs to do what they want to with it. I've got some sad news for them too...the world is full of violence, hate, abuse, people getting hurt, death, massive injuries...& anything else that national television doesn't want the public to see.

It wasn't their video, why did they claim copyright? Can we issue DCMA's to NASCAR & claim that we saw someone hitting another person over the head with a chair while the camera was panning out to show the entire field making the last turn? If they say no, can we claim that NASCAR is promoting violence since they won't take it down?

See how stupid this sounds? That video does not belong to us, so we can't issue a DCMA. But if a fan makes a video, it suddenly becomes theirs?

It is very clear that the owner of the video can take them to court for filing a false DCMA claim that "harmed" them for MILLIONS of dollars. Why not...THEY'LL do it to us in a heartbeat! And this case is clear abuse of the DCMA & a false claim which should have penalties by law.

The copyright does belong to NASCAR, but it was fair use.

As a few commenters have pointed out, the video becomes the property of NASCAR by virtue of the contract terms on the ticket. This is long settled law and has nothing to do with the Internet, Google, or YouTube. Ergo NASCAR's issuance of a 512(a) takedown notice was proper.

However, the clip was clearly fair use by virtue of its news value. Google reinstated it quickly, without having waited the 10-day counternotice period mandated by the DMCA, because it was secure in the knowledge that the clip would pass the fair use sniff test.

Re: Re: Re: The copyright does belong to NASCAR, but it was fair use.

Thanks for the correction. Seems like a silly mistake in retrospect. I also am not an expert.

I really wish the topic of IP law was either much simpler, or much less necessary. If it is going to be necessary for everyone to understand this kind of stuff in depth just to carry out normal, everyday life, what hope do most people have of staying on the right side of the law?

I spend way too much time digging into this stuff and trying to understand it already, and still there are surprises and logical pretzels everywhere you look.

Re: Re: Re: Re: The copyright does belong to NASCAR, but it was fair use.

Re: The copyright does belong to NASCAR, but it was fair use.

"However, the clip was clearly fair use by virtue of its news value."

According to most legal experts....the user that created the video at the event....owns the copyright to that footage. It was news worthy and technically fair use. But the person that shot the footage on their camera or phone as it happened will own that copyright. There was no reason for NASCAR to issue the takedown.

Even as far as saying that it was because "the person didn't have a press ticket", is a lame statement from NASCAR...which was their other excuse for the takedown request.

Re: The copyright does belong to NASCAR, but it was fair use.

Re: The copyright does belong to NASCAR, but it was fair use.

That's not how contract law works. Even if a vague, coercive, poorly-phrased "contract" like the ticket could hold up and restrict the fans, it would not mean they lose their copyright. It means that NASCAR and/or the venue can punish them for violating the contract, by confiscating their camera, throwing them out, or banning them from future events.

This isn't the same as rerecording a broadcast that NASCAR and the broadcaster co-created and own copyright on. You need permission to take video of the event without NASCAR waving that ticket language in your face, but failing to get permission does not make the copyright of a work belong to someone who didn't create the work.

Taking photos or video without permission on private property might fall into privacy law, which is even less permissive than copyright, but again, NASCAR is just throwing out whatever tools it has available.

Re: The copyright does belong to NASCAR, but it was fair use.

As a few commenters have pointed out, the video becomes the property of NASCAR by virtue of the contract terms on the ticket. This is long settled law and has nothing to do with the Internet, Google, or YouTube. Ergo NASCAR's issuance of a 512(a) takedown notice was proper.

That's not a legal transfer or assignment of copyright.

However, the clip was clearly fair use by virtue of its news value.

That, however, is true, but I still disagree that NASCAR owned the copyright.

Re: The copyright does belong to NASCAR, but it was fair use.

Please state with actual cases where there has been ANY type of allowing so called "ticket clauses' to be used and not declared voidable when you are giving up a legal right that can not be transferred without an actual direct and knowing transference.

I'll wait... Though I won't hold my breath since under contractual law it historically is in fact the absolute opposite.

Re:

In a way, we did get to see copyright in action protecting the person who shot that video and posted it on YouTube. Google has a very flawed system where a video is taken down without human review. All a person has to do is issue a DMCA request to YouTube and if it goes uncontested by the user, it stays down. The entirety of all internet press/media contested that as well as Google's own lawyers...so the video was immediately put back up because NASCAR did not shoot that footage.

Re: Re:

How many people will know that they can challenge, and how to challenge a takedown. That is not copyright in action, but public interest protecting the copyright owner. If the video was not of such interest it would probably have stayed down.
We get to hear of the challenged takedowns, but how many takedowns go unchallenged even though they should not have happened?

Re: Re: Re: Re:

Its not just the automation that is worrying, the fact that the system is take down on demand, and relies on the affected party to challenge when they notice what has happened, if they know they can, and how to do this. This allows most fair use to be taken down, and leaves too many people believing that they were maybe in the wrong.

Minght not have been NASCAR (Directly)

This is going to sound a tad bizarre, but I hope people try to keep an open mind about what I am about to say.

NASCAR may not have been durectly responsible for the DMCA take-down request to the video in question in the first place. Their intent may have only to allow respect for the families of those injured. When called out for their DMCA abuse...they backed off and canceled the request.

I woke up early this morning to make breakfast for my wife before she headed off to teach. We were watching Good Morning America and that same video was featured there. Good morning America is a live show in the morning but each show is prepped weeks ahead of time. That had to have been clipped in after the take-down notice was "issued" by NASCAR. Then again the NHL doesn't even get that strict so who knows....

NASCAR did in fact mean it in their statement that they wanted the video taken down and Mike Mansick I commend you for at least admitting their intent was in the right place...I do however agree they went at it the wrong way.

I think this is the first time I heard of NASCAR ever really taking such DMCA measures against YouTube users.

Re: Re: Minght not have been NASCAR (Directly)

Another Avenue

So I am not sure what the right answer is here. Yes NASCAR did abuse the DMCA notice, however should there be a way for them to delay the posting of such videos out of respect for the injured and their families? In the on air broadcast they limited their replays to one angle from far away, not showing any of the debris that went into the stands. I am an avid NASCAR fan and they usually have many replay from many angles, so I would not doubt that they would have more footage, especially at the start finish line.

This particular video does not show much in the way of the people injured. There was another video posted that said - "Fan Killed in NASCAR Crash" that had a DMCA notice immediately following the crash - I did not see the video just the notice.

So the DMCA notice was bogus by NASCAR but should there not be an avenue for them to at least have a delay period before such videos are posted?

We recently had a teacher at my school post a number of videos in which it was clear to anyone who knew him that there was some type of break - he was clearly not himself. I worked with his wife to have the videos removed, there was an option to remove the video because it was harmful to others. She was just trying to stop all the negative attention she was getting because obviously he needed help.

Re: Another Avenue

.

"So I am not sure what the right answer is here. Yes NASCAR did abuse the DMCA notice, however should there be a way for them to delay the posting of such videos out of respect for the injured and their families?"

Precisely measured and stated, how does "respect for the injured and their families", a small number of people, outweigh the rights of the copyright holder to share his/her work detailing the reality of an important news event with millions and millions of others who have a legitimate right to know about what happened?

And while we're at it, what other ways would you prefer that we all self-censor ourselves?

Re: Another Avenue

"So the DMCA notice was bogus by NASCAR but should there not be an avenue for them to at least have a delay period before such videos are posted?"

The issue is more of ethics. I honestly think that in spite of the intent by NASCAR to take it down...they could have used an alternate avenue. They could have requested that the video be taken down directly to the person who uploaded it to YouTube out of reverence of those injured and dead.

So it really is hard to ask that and the real question is...Doesn't Google have other options for Take-Down requests outside of DMCA abuse??? Simply put it seems it does not in fact have other avenues for take-down requests other than copyright and DMCA.

Re: Re: Another Avenue

Except that even if that is the only means it is still just a corporate excuse. They do not want footage that they don't control in the wild where it can be used as evidence in litigation against them for negligence as a result of the tragic event. People got hurt at their event. There will likely be some of those that hire lawyers to scrutinize every piece of evidence out there to find anything that they can to turn this into a big payday. It's damage control. THAT is their sole purpose for taking it down. The "out of respect" comment is just an excuse to try to make themselves look better.

Re: Re: Re: Re: Another Avenue

Of course. I agree the only MEANS they have is to abuse the DMCA to take it down. I was speaking to WHY they felt compelled to do so. The assertion of "out of respect" is a thinly veiled excuse on top of a damage control CYA attempt.

Re: Re: Re: Re: Re: Another Avenue

The only options for flagging a YouTube video are Copyright, and siting adult content in the video....Maybe it was the only avenue they could think up quickly enough to deal with the reverence of the situation...NASCAR just didn't think they could issue a public statement asking not to yet...

Re: Another Avenue

should there be a way for them to delay the posting of such videos out of respect for the injured and their families?

The short answer is no.

Freedom of speech and freedom of the press does not stop when it is disrespectful to someone. This situation would be even worse because NASCAR gets to decide what is respectful. Why would they become the ones to determine what is respectful and when?

Allowing an entity - government or otherwise - to decide when a video someone else created can be disseminated is a direct path to censorship.

Re: Another Avenue

"...should there be a way for them to delay the posting of such videos out of respect for the injured and their families?"

There was absolutely nothing in the video that was taken down that a reasonable person would consider disrespectful to the injured and their families. It was a lame excuse by NASCAR, who were doing it purely for image control.

What the hell gives NASCAR the right?

The fan video of the wreck on the final lap of today’s NASCAR Nationwide Series race was blocked on YouTube out of respect for those injured in today’s accident.

Even if they held the copyright... what gives them to stop all videos? This is obviously news worthy so first use would likely apply anyway.

The even bigger issue here is that they believe they have the right to censor free speech because they don't believe it to be right or fair or "respectful" to someone. That's bullshit and if we want to continue free speech, censorship of this kind must be punished.

Let me be clear on this: I don't care about the abuse of copyright directly. That's bad, but I care about the process outlined in our laws say that someone or a company has the right to censor without reprocussions. Censoring free speech (or taking away another American's rights) should be punishable and the loopholes or exceptions in whatever policy which allows them to do this should be fixed in the courts (cause Congress is busy not passing budgets).

That's Me

It was a long night last night and a long busy day at the office so I haven't read all of the comments. When I see this happen, I think of techdirt.

I had a couple of thoughts:

1. There is probably a clause when you buy or use the ticket, OK, sure, you probably do, but...

2. The mobile videos aren't offering some alternative to viewing the official telecast.

3. The mobile videos are offering something that the network cameras couldn't.

NASCAR cares a lot about its image, I'm not a huge fan but I enjoy catching a few races per season, especially the big ones, and even I know that NASCAR cares a lot about its image. I think they take safety seriously, as seriously as you can when your entertainment involves high powered automobiles circling a track at nearly 200 miles per hour. As a semi-fan, I'll have to face it, things happen, it is dangerous. How many of us have actually watched someone die? I did, Dale Earnhardt #3, sure, he was in a car, but millions watched a man die on live TV, and on endless replays. As fans and semi-fans and even non-fans, we don't want to see people get hurt, not drivers, crew, officials, or fans, etc. but when it happens, we don't want NASCAR to cover it up, even if behind the scenes we know that NASCAR is trying to figure out what went wrong and how they could prevent it in the future, while of course, preserving what makes their sport (or non sport depending on your point of view) what it is, an exciting exhibition of engineering, speed, endurance, and all that good stuff.

Thanks for the shout out. This comment was a little rambley, but I wanted to get it in before I crashed for the night.

DCMA

This is really youtubes fault. They need to setup a process to check dcma requests are legitimate. It's very obvious this video was recorded by a fan, its all too often you hear about dcma requests being abused.

Um, what?

In the process of purchasing the tickets, there was very likely a release signed (digitally or otherwise) whereby the fans agreed that they were forbidden from taking any photos/video of the event or that any such photos/video would be property of NASCAR.